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EXHIBIT 10.8
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") made as of the 3rd day of May
2001, between Lumenon Innovative Lightwave Technology Inc., a company duly
incorporated under the laws of the State of Delaware having its head office at:
0000, Xxxxx-Xxxxxx Xxxxxxx, Xx-Xxxxxxx, Xxxxxxxx xx Xxxxxx, X0X 0X0 (the
"Company") and Xx. Xxxx Xxxxxxxxx, residing at 00000 Xxxxxx Xxxx, Xxx Xxxxxxxx,
Xxxxxxxxxx, 00000-0000, X.X.X. (the "Executive").
WHEREAS:
1. The Company is engaged in the fabrication and production of optical
components for the telecommunications and datacommunication industries
(the "Business");
2. The Company wishes to employ the Executive on the terms and conditions
set out below;
3. The Executive wishes to be so employed by the Company;
4. The Company has selected the Executive as the finalist candidate from
a retained executive search contract with GAAP Search Inc.
5. The Company has now terminated the specific search of the above
paragraph and has not engaged, and presently, as of the execution date
of this Agreement, does not intend, or is not presently in
discussions, to engage either a retained or a contingent executive
search contract or agent to provide potential candidates to replace
the Executive in his capacity at President and CEO of the Company,
especially, but not limited to, the period within ninety one (91) days
of the Starting Date. The Company also confirms that no
action/Resolution of the Board of Directors has been made to initiate
actions on the part of the Directors to provide potential candidates
for replacement as above.
THIS AGREEMENT witnesses that the parties have agreed that the terms and
conditions of the relationship shall be as follows:
1. WORKING PERMIT
1.1. WORKING PERMIT. The Company will use its best efforts to assist the
Executive to obtain appropriate work permit and visa documentation,
including the renewal of those documents for the Executive and for his
spouse and daughter, if required.
1.2. LEGAL ENTITLEMENT TO WORK IN QUEBEC. The Executive understands and agrees
that the present Agreement is conditional upon the Executive being legally
entitled to work in Quebec. In the event that the Executive is not legally
entitled to work in
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Quebec, for reason beyond the control of the Company, the present
Agreement shall be null and void and the Executive will not be entitled to
any notice, indemnity or damages of any nature whatsoever.
1.3. In the event that the working permit has not been obtained in time for the
Starting Date, as defined hereinafter, the Executive will commence
employment as a consultant and the parties agree that each and every
condition of the present Agreement would be applicable during the period
prior to the granting of the working permit and that any and all payments
due would be made as permissible by Canadian law and all payments due that
may be in arrears would be paid within five (5) working days, by direct
bank wire transfer, of the granting of the working permit.
2. EMPLOYMENT
2.1. DUTIES. The Company appoints the Executive to undertake the duties and
exercise the powers of President and Chief Executive Officer (CEO) of the
Company. The Executive agrees to be bound by the terms and conditions of
this Agreement and to report to the Company's Board of Directors.
2.2. BOARD OF DIRECTORS. The Executive shall be appointed to serve as a member
of the Company's Board of Directors for the duration of his employment
hereunder.
3. TERM
3.1. TERM. Subject to the provisions of this Agreement concerning the
termination of employment, the employment of the Executive shall be for an
indeterminate term starting on May 7th, 2001 (the "Starting Date").
4. COMPENSATION
4.1. BASE SALARY. The Executive shall be paid a gross annual base salary of six
hundred thirty thousand Canadian dollars ($630,000.00 Can.). Said salary
shall be subject to all tax withholdings and statutory and other
deductions and shall be paid bi-monthly, at the rate of twenty six
thousand two hundred fifty Canadian dollars ($26,250.00 Can.), on the 15th
and the last day of each month (24 pay periods), by direct bank wire
transfer. Subject to the following, the Executive agrees and recognises
that the above annual base salary is inclusive of all activities and work
performed to the benefit of the Company including activities as member of
the Board of Directors.
4.2. SIGN ON BONUS. In addition to the base salary as outlined above, and the
performance bonus as outlined below, the Executive will be entitled to a
one time, special "sign on" bonus of thirty thousand Canadian dollars
($30,000 Can.), less all tax withholdings and statutory and other
deductions, paid by direct wire transfer, within one (1) week of the
Starting Date.
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4.3. PERFORMANCE BONUS. In addition to the annual base salary and sign on bonus
outlined above, the Executive will be entitled to a potential annual
performance bonus equivalent to an amount equal to 50% of his base salary.
For the period of May 7th 2001 to May 6th, 2002, this potential annual
performance bonus amount would equal three hundred fifteen thousand
Canadian dollars ($315,000.00 Can.) subject to the following terms:
(a) the actual amount of the bonus will be based on management by
objective ("MBO") to be determined by the Board of Directors within
ninety (90) days of the Starting Date;
(b) for the first year of the Executive's employment hereunder, the
Executive shall be entitled to a guaranteed bonus of one hundred and
sixty thousand Canadian dollars ($160,000.00 Can.) to be deducted from
the above mentioned potential annual performance bonus and payable,
less all tax withholdings and statutory and other deductions, in an
amount of eighty thousand Canadian dollars ($80,000 Can.) on each of
the two following dates: November 7, 2001 and May 7, 2002.
4.4. STOCK OPTIONS. As an incentive for the Executive to remain in the service
of the Company, the Company grants to the Executive an option to purchase
1,500,000 shares of the Company's common stock, per the Company's Stock
Option Agreement. The exercise price of the stock will be the fair market
value of the Company's common stock as of the close of the stock market on
the last working day prior to the Starting Date of the Executive. The
Stock Options will become exercisable (will "vest") at the rate of
twenty-five percent (25%) (375 000 shares) on the first anniversary of the
Starting Date, the remaining 75% (1 125 000 shares) at the rate of 1/36th
per month (31 250 shares) during the following thirty six (36) months
(100% vested over a 48 month period). In addition, all of the Stock
Options will become fully exercisable (100% fully vested) upon the
consummation of any transaction constituting a "change of control" of the
Company as defined hereinafter.
The Stock Options provided for by the above paragraph are, subject to
Article 11 of the present Agreement, conditional upon:
(a) the employment of the Executive not being terminated by the Company;
(b) the Executive not having resigned his employment with the Company;
Such options cannot be assigned or transferred.
Furthermore, the present Stock Options are subject to the Company Stock
Option Agreement, unless as modified above.
4.5. CHANGES IN COMPENSATION. After each year of the Executive's employment,
the Executive's base salary and potential annual performance bonus may
be reviewed and increased and additional Stock Options may be granted
at the discretion of the Company based on the performance of the
Executive.
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5. BENEFITS
5.1. BENEFIT PLANS. The Executive shall participate in all executive benefit
plans (the "Executive Benefits") which the Company may provide, including
medical/hospital and extended health care benefits and life insurance.
These plans provided to the Executive will be at least equivalent with
those provided to the other Executive of the Company. The Company reserves
the right to unilaterally revise the terms of the Executive Benefits.
Executive Benefits will be provided in accordance with the formal plan
documents or policies and any issues with respect to entitlement or
payment of benefits under any of the Executive Benefits will be governed
by the terms of such documents or policies establishing the benefit in
issue.
5.2. VACATION. The Executive shall be entitled during each year to four (4)
weeks paid vacation, beginning on May 7, 2001.
5.3. EXPENSES.
(a) it is understood and agreed that the Executive will incur expenses in
connection with his duties under this Agreement. The Company will
reimburse the Executive for any reasonable expense, providing that the
Executive provides to the Company an itemized written account and
receipts acceptable to the Company within thirty (30) days after they
have been incurred.
(b) conditional upon the Executive selling his 1998 Mercedes S-320
automobile to a Montreal car dealer, the Company undertakes to lease,
at its own costs, the said 1998 Mercedes S-320 automobile from the
said car dealer for the benefit of the Executive and reimburse, upon
reception of proper receipts, all expenses and costs related to the
use of the said automobile.
5.4. DIRECTORS AND OFFICERS INSURANCE. The Executive shall be covered by the
Directors and Officers Liability Insurance Policy maintained by the
Company.
6. MOBILISATION
6.1. MOBILISATION. The Executive shall be reimbursed for mobilisation expenses
upon receipt of proper invoices, the whole in accordance with Schedule I
of the present Agreement attached hereto.
6.2. RELOCATION.
(a) The Executive shall be entitled to a furnished apartment, including
not only furniture but also home furnishings and appliances, cleaning
services and other typical services, in Montreal and a rental car paid
by the Company for a maximum period of six months from the Starting
Date. During the period required for the apartment search, reasonable
hotel accommodations and payment for the Executive's laundry and meals
will be provided for by the Company;
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(b) The Executive shall be entitled to a "Bridge Loan" from the Company of
a maximum amount of three hundred thousand Canadian dollars
($300,000.00 Can.) at the preferred rate determined by the Royal Bank
of Canada, in the event that the Executive buys a house in Quebec
before he is able to sell his house in California. The said "Bridge
Loan" will have to be fully reimbursed by the Executive within 180
days. The Executive understands that the Company will request that the
repayment of the said loan be guaranteed by a mortgage on the
Executive's house in Quebec.
7. TAXATION
7.1. TAX RETURNS FORMS.
(a) The Company will pay for the cost of chartered accountant's services
related to the preparation of the Executive's and spouse's tax returns
for all relevant State of California, federal United States, Canadian
provincial and federal tax requirements for fiscal year 2001.
(b) The Executive is required to complete all required tax returns forms
in a timely manner and cooperate with the requests of the tax advisors
regarding information needed to prepare the tax returns.
8. EXCLUSIVE SERVICE
8.1. FULL TIME AND ATTENTION. Consistent with his position with the Company,
the Executive shall:
(a) devote the whole of his working time, attention and skill to his
duties hereunder;
(b) report to the Board of Directors from time to time and for a minimum
of four (4) times per year i.e.: once every quarter;
(c) use his best efforts to promote the interests of the Company and its
affiliates. The Executive may not serve as a member of the Board of
Directors of any entity other than the Company, except for charitable
organisations or unless the Executive is authorized by the Board of
Directors of the Company in its sole discretion.
9. OBLIGATIONS OF LOYALTY, NON-SOLICITATION AND NON-COMPETITION
9.1. NON-COMPETITION. The Executive agrees with and for the benefit of the
Company that during his employment pursuant to this Agreement and for a
period of twelve (12) months from the date of termination of this
Agreement, however caused, he will not for any reason, directly or
indirectly, either as an individual or as a partner or joint venturer
or as an employee, principal, consultant, agent, shareholder,
(excluding ownership by the Executive, as a passive investment of less
than one percent (1%) of the outstanding
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shares of capital stock of any corporation with one or more classes of its
capital stock listed on a Security Exchange or publicly traded in the over
the counter market) officer, director, or salesperson for any person,
firm, association, organization, syndicate, company or corporation, or in
any other manner carry on, be engaged in, concerned with, interested in,
advise, lend money to, guarantee the debts or obligations of, permit his
or her name or any part of it to be used or employed by any person,
business, firm, association, syndicate, company, organization or
corporation concerned with or engaged or interested in a business which is
the same as, or competitive with, the Business of the Company and any
controlled or controlling company, namely, the business consisting in the
fabrication and production of optical components for the
telecommunications and datacommunication industries and such, within the
geographical area of Canada, the United States of America and Europe;
9.2. NON-SOLICITATION OF CUSTOMERS. Without restricting the generality of the
foregoing, the Executive agrees with and for the benefit of the Company
that during his employment pursuant to this Agreement and for a period of
eighteen (18) months from the date of the termination of his employment,
however caused, he will not for any reason, directly or indirectly, either
as an individual or as a partner or joint venturer or as an employee,
principal, consultant, agent, shareholder, officer, director, or
salesperson for any person, firm, association, organization, syndicate,
company or corporation, or in any other manner, solicit or accept business
with respect to products competitive with those of the Company from any of
the Company's customers, wherever situated.
9.3. NON-SOLICITATION OF PERSONNEL. Without restricting the generality of the
foregoing, the Executive further agrees that, during his employment
pursuant to this Agreement and for a period of eighteen (18) months
following the termination of his employment, however caused, the Executive
will not hire or take away or cause to be hired or taken away any employee
of the Company or, following the termination of the Executive's
employment, however caused, hire any employee who was in the employment of
the Company during the twelve (12) months preceding the date of the
termination of his employment.
10. CONFIDENTIALITY
10.1. CONFIDENTIAL INFORMATION. Except in the normal and proper course of the
Executive's duties hereunder, the Executive will not use for the
Executive's own account or disclose to anyone else, during his employment
and for a period of five (5) years following the termination of his
employment, however caused, any confidential or proprietary information or
material (as defined hereinafter) relating to the Company's operations or
business which the Executive obtains from the Company or its officers or
employees, agents, suppliers or customers or otherwise by virtue of the
Executive's employment by the Company or by the Company's predecessor.
Confidential or proprietary information or material includes, without
limitation, the following types of information or material, both existing
and contemplated, regarding the Company or its parent, affiliated or
subsidiary companies: corporate information, including contractual
licensing arrangements, plans, strategies, tactics, policies, resolutions,
patent, trade-xxxx and trade name applications, and any litigation or
negotiations, information concerning suppliers,
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marketing information, including sales, investment and product plans,
customer lists, strategies, methods, customers, customer lists, prospects
and market research data, financial information, including cost and
performance data, debt arrangements, equity structure, investors and
holdings, operational and scientific information, including trade secrets;
technical information, including technical drawings and designs and
personnel information, including personnel lists, resumes, personnel data,
compensation practices and procedures, organizational structure and
performance evaluations (the "Confidential Information").
10.2. RETURN OF DOCUMENTS. The Executive agrees that all documents (including,
without limitation, software and information in machine-readable form) of
any nature pertaining to activities of the Company and to its parent and
their respective affiliated, related, associated or subsidiary companies,
including, without limitation, Confidential Information, in his possession
now or at any time during his employment, are and shall be the property of
the Company and its parent, and their respective affiliated, related,
associated or subsidiary companies, and that all such documents and all
copies of them shall be surrendered to the Company whenever requested by
the Company.
10.3. PROPRIETARY INFORMATION. The Executive hereby acknowledges and agrees that
the Company, or its designee, shall be the sole and exclusive owner of any
and all right, title, and interest in any and all inventions, ideas,
concepts, innovations, algorithms, software, and original works of
authorship (together "Proprietary Works"), whether or not protectable by
patent, copyright, mask work, integrated circuit topography laws,
trademark, industrial design laws, or other proprietary rights, that are
made, developed or conceived by me solely or jointly with others, at any
time during the term of his employment with the Company. Consequently, the
Executive hereby assigns to the Company, or its designee, as its exclusive
property any and all right, title and interest which he may have in and to
the Proprietary Works including, but not limited to any and all copyright,
patent right, moral rights, industrial design right, trademark right, data
bases rights, mask work rights, integrated circuit topography rights and
any other proprietary rights, which assignment of rights, titles and
interests is made without any restriction, for the entire world and for
the duration of such rights, titles and interests including any renewal or
extension of such duration and in perpetuity thereafter. The Executive
hereby waives to the benefit of the Company, or its designees, and its
successors, assignees and licensees any and all moral rights and any other
rights of similar nature which the Executive may hold in any and all of
the Proprietary Works, and such waiver is made without any restriction
whatsoever, for the entire world, for the duration of any such moral
rights including any renewal or extension of such duration, and in
perpetuity thereafter.
10.4. ACKNOWLEDGEMENT. The Executive acknowledges that, in connection with the
Executive's employment by the Company, he will receive or will become
eligible to receive substantial benefits and compensation. The Executive
acknowledges that his employment by the Company and all compensation and
benefits and potential compensation and benefits to the Executive from
such employment will be conferred by the Company upon him only because and
on condition of his willingness to commit his
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best efforts and loyalty to the Company, including protecting the
Company's right to have its Confidential Information protected from
non-disclosure by him and abiding by the confidentiality, non-competition
and other provisions herein. The Executive understands his obligations as
set forth in Article 9 and agrees that such obligations would not unduly
restrict or curtail his legitimate efforts to earn a livelihood following
any termination of his employment with the Company. The Executive agrees
that the restrictions contained in Articles 9 and 10 are reasonable and
valid and all defences to the strict enforcement thereof by the Company
are waived by him. The Executive further acknowledges that irreparable
damage would result to the Company if the provisions of Articles 9 and 10
are not specifically complied with by the Executive, and agrees that the
Company shall be entitled to any appropriate legal, equitable, or other
remedy, including injunctive relief, in respect of any failure or
continuing failure to comply with the provisions of Articles 9 and 10.
11. TERMINATION OF EMPLOYMENT
11.1. TERMINATION WITHIN NINETY (90) DAYS FROM THE STARTING DATE.
Notwithstanding any provision to the contrary in the present Agreement,
the Company may, for any reason, terminate the Executive's employment
within ninety (90) days from the Starting Date by giving the Executive a
thirty (30) day prior written notice and by paying the Executive all
accrued base salary and a severance indemnity equivalent to one (1) month
of base salary per month worked.
11.2. TERMINATION FOR DEATH OR DISABILITY. The parties understand and agree that
the Executive's employment pursuant to this Agreement may be terminated,
by paying the Executive all accrued base salary, any earned but unpaid
bonus amounts at the date of termination on a prorated basis and any
accrued but unused vacation benefits, all earned through the date of
termination, in the following manner in the specified circumstances:
(a) upon the death of the employee.
(b) at any time by the Company if the Executive becomes permanently
disabled within the meaning of the long term disability policy
maintained by the Company;
11.3. TERMINATION FOR CAUSE. The parties understand and agree that the
Executive's employment pursuant to this Agreement may be terminated, for
cause, in the Company's absolute discretion, without any notice or pay in
lieu thereof, by paying the Executive all accrued base salary and any
accrued but unused vacation benefits earned to the date of termination.
For the purposes of this Agreement, cause includes but is not limited to
the following:
(a) any material breach of the provisions of this Agreement;
(b) Executive's engaging or in any manner participating in any activity
which is directly competitive with or intentionally injurious to the
Company or which violates any material provision of Articles 9 and 10
hereof; or the use of alcohol
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or illegal drugs, materially interfering with the performance of the
Executive's obligations under this Agreement, continuing after written
warning;
(c) Executive's commission of any fraud against the Company or use or
intentional appropriation for his personal use or benefit of any funds
or properties of the Company not authorized by the Board to be so used
or appropriated;
(d) Executive's conviction of any crime involving moral turpitude;
(e) any conduct or omission of the Executive which prevents him from
legally working in Quebec;
(f) any and all omissions, commissions or other conduct which would
constitute cause at law, in addition to the above-specified causes;
Failure by the Company to rely on the provisions of this paragraph in any
given instance or instances, shall not constitute a precedent or be deemed
a waiver.
11.4. TERMINATION WITHOUT CAUSE. The parties understand and agree that the
Company, in its absolute discretion and for any reason other than the ones
mentioned in Articles 11.1 to 11.3, may terminate the Executive's
employment by paying the Executive all accrued base salary, any earned but
unpaid bonus amounts at the date of termination on a prorated basis and
any accrued but unused vacation benefits, all earned through the date of
termination, and by:
(a) delivering a written notice of such termination to the Executive where
any notice of termination given pursuant to the Article shall effect
termination as of the date specified in such notice (which shall be no
earlier than thirty (30) days after such notice is given) or, in the
event no such date is specified, on the last day of the month
following the month in which such notice is delivered or deemed
delivered as provided in Article 14 below, and
(b) paying to the Executive an indemnity equivalent to fifteen (15) months
of base salary in a lump sum payment or as salary continuance, at the
Company's sole discretion;
(c) maintaining the benefits provided for in Article 5.1 for a period of
fifteen (15) months following such a termination or until the
Executive commences other employment whichever occurs first, subject
to the approval of the Company's group insurers;
(d) Stock Options will continue to accrue during a period of fifteen (15)
months following such a termination and the Executive shall have
ninety (90) days from the end of that fifteen (15) month period to
exercise those options;
(e) in the event that such a termination occurs within a twenty-four (24)
month period from the Starting Date, the Executive will be entitled to
a demobilization cost in
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accordance with Schedule II of the present Agreement attached hereto,
if applicable, in order to relocate the Executive and his family
within a 100 mile radius from the residence they left in California to
come to Quebec. Reimbursement of those cost will be made by the
Company upon reception of proper receipts.
(f) the parties specifically agree that if the Executive should die or
become permanently disabled while any amounts are due pursuant to this
Agreement, including, but not limited to, amounts due per Article 11.4
herein, that the Executive/his estate shall be entitled to receive all
such amounts due.
11.5. FAIR AND REASONABLE NOTICE. The Executive acknowledges that the prior
notice and/or payments contemplated in Article 11.4 above include all of
his entitlements to either notice or pay in lieu of notice and severance
pay under the CIVIL CODE OF QUEBEC and the ACT RESPECTING LABOUR STANDARDS
OF Quebec. The Executive acknowledges and agrees that the notice or pay in
lieu of notice provisions in Article 11.4 is fair and reasonable and is
the result of negotiations between the parties.
11.6. COMPANY'S ABILITY TO ALLEGE CAUSE. The parties understand and agree that
the payment of the indemnity above mentioned to the Executive on
termination of the Executive's employment shall not prevent the Company
from alleging cause for the termination. 11.7. CONSTRUCTIVE DISMISSAL.
(a) If at any time during the term of this Agreement there occurs a
Material Breach by the Company, which Material Breach has not been
remedied in all material aspect at any time within thirty (30) days
after the Executive gives written notice thereof, and after the expiry
of such thirty (30) day period and provided the Material Breach in
question continues unremedied, the Executive shall have the right to
terminate his employment with the Company within sixty (60) days after
the occurrence of the Material Breach. Any such termination by the
Executive shall not, for the purposes of this Agreement, be considered
a voluntary termination of employment by the Executive, but instead
shall entitle the Executive to the same severance payment and other
rights set forth in Article 11.4 above;
(b) for purposes of the present Agreement, Material Breach means:
(i) the assignment to the Executive of any duties inconsistent
with the Executive's position (including status, title and
reporting requirements), authority, duties and
responsibilities, or any other action by any member of the
Company which would result in the diminution of such
position, authority, duties or responsibilities or
(ii) any reduction in the base salary, sign on bonus, potential
annual performance bonus or other compensation, benefits,
expenses, office or support staff previously provided to the
Executive, in each case, without
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the consent of the Executive, but excluding an isolated
insubstantial and inadvertent action not taken in bad faith;
(iii) the Executive is relocated outside Canada or United States
without his consent;
(iv) the Executive resigns as a result of unlawful discrimination
as evidenced by a final court order;
(v) any material breach by the Company of any of its obligations
under this Agreement;
(vi) the Executive loses his position as Director of the Company;
(vii) the Company fails to provide that this Agreement is
expressly assumed by its successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise)
to all or substantially all of the business and/or assets of
the Company to expressly assume and agree to perform the
Company's obligations hereunder in the same manner and to
the same extent as if no such succession had taken place.
For purposes of this provision, the Company agrees to
provide the Executive with proof of the assumption of the
Agreement by its successor no later than thirty (30) days
prior to the effective date of any transaction providing for
such succession;
(viii) the Company fails to use its best efforts to assist the
Executive in the renewal of the working permit referenced in
Article 1.1 and the working permit is not renewed for reason
under the Company's control;
(ix) If the Company asks the Executive to perform any act which
is illegal, including commission of any crime involving
moral turpitude.
11.8. CHANGE OF CONTROL.
(a) the Executive shall have the right to terminate his employment with
the Company any time during the six (6) month period following a
Change of Control, and such termination by the Executive during such
six (6) month period shall not, for the purposes of this Agreement, be
considered a voluntary termination of employment by the Executive, but
instead shall entitle the Executive to the severance payment and other
rights set forth in Article 11.4 above.
(b) For purposes of the present Agreement, Change of Control means:
(i) the occurrence of any transaction that results in the ownership
of 50% or more of the voting power of all outstanding securities
of interests of the Company on a fully diluted basis to any party
or group; or
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(ii) the sale of all or of fifty percent (50%) of the Company's assets
used in the Company's business.
11.9. RESIGNATION. The Executive shall have the right to terminate his
employment upon giving the Company a one (1) month written notice. The
Employee agrees and recognizes that the notice provided for in the
present Article 11.9 is for the sole benefit of the Company, and that,
as such, the Company, in its sole discretion, shall have the right to
renounce and waive the benefit of part and/or of the totality of any
such notice and the Executive will not be entitled to any indemnity or
damages of any nature whatsoever. The Executive shall be paid for his
written notice period.
11.10. RESIGNATION FROM OFFICES. On termination of employment the Executive
shall immediately resign all offices held (including directorships) in
the Company and save as provided in this Agreement, the Executive
shall not be entitled to receive any payment or compensation for loss
of office or otherwise by reason of the resignation. If the Executive
fails to resign as mentioned the Company is irrevocably authorized to
appoint some person in his or her name and on the Executive's behalf
to sign any documents or do any things necessary or requisite to give
effect to such resignation.
12. COMPANY PROPERTY
12.1. COMPANY PROPERTY. The Executive acknowledges that all items of any and
every nature or kind created or used by the Executive pursuant to the
Executive's employment under this Agreement, or furnished by the
Company to the Executive, and all equipment, automobiles, cellular
phones, credit cards, books, records, reports, files, diskettes,
manuals, literature, confidential information or other materials shall
remain and be considered the exclusive property of the Company at all
times and shall be surrendered to the Company, in good condition,
promptly at the request of the Company, or in the absence of a request,
on the termination of the Executive's employment with the Company.
13. SUCCESSORS AND ASSIGNS
13.1. SUCCESSORS AND ASSIGNS. This Agreement shall enure to the benefit of,
and be binding on, the parties and their respective heirs,
administrators, executors, successors and permitted assigns. The
Company shall have the right to assign this Agreement to any successor
(whether direct or indirect, by purchase, amalgamation, arrangement,
merger, consolidation or otherwise) to all or substantially all of the
business and/or assets of the Company provided only that the Company
must first require the successor to expressly assume and agree to
perform this Agreement in the same manner and to the same extent that
the Company would be required to perform it if no such succession had
taken place. The Executive by his signature hereto expressly consents
to such assignment. The Executive shall not assign or transfer,
whether absolutely, by way of security or otherwise, all or any part
of the his rights or obligations under this Agreement without the
prior written consent of the Company.
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14. NOTICES
14.1. NOTICE TO EXECUTIVE. Any notice required or permitted to be given to
the Executive shall be sufficiently given if delivered to the
Executive personally or if mailed by registered mail to the
Executive's address last known to the Company, or if delivered to the
Executive via facsimile.
14.2. NOTICE TO COMPANY. Any notice required or permitted to be given to the
Company shall be sufficiently given if mailed by registered mail to
the Company's Head Office at its address last known to the Executive,
or if delivered to the Company via facsimile.
15. SEVERABILITY
15.1. SEVERABILITY. In the event that any provision or part of this
Agreement shall be deemed void or invalid by a court of competent
jurisdiction, the remaining provisions or parts shall be and remain in
full force and effect.
16. ENTIRE AGREEMENT
16.1. ENTIRE AGREEMENT. This document constitutes the entire Agreement
between the parties with respect to the employment and appointment of
the Executive and any and all previous agreements, written or oral,
express or implied, between the parties or on their behalf, relating
to the employment and appointment of the Executive by the Company, are
terminated and cancelled and each of the parties releases and forever
discharges the other of and from all manner of actions, causes of
action, claims and demands whatsoever, under or in respect of any
agreement.
17. MODIFICATION OF AGREEMENT
17.1. MODIFICATION. Any modification to this Agreement must be in writing
and signed by the parties or it shall have no effect and shall be
void.
18. HEADINGS
18.1. HEADINGS. The headings used in this Agreement are for convenience only
and are not to be construed in any way as additions to or limitations
of the covenants and agreements contained in it.
19. GOVERNING LAW
19.1. GOVERNING LAW. This Agreement shall be construed in accordance with
the laws of the Province of Quebec.
20. SATISFACTION OF ALL CLAIMS
20.1. SATISFACTION OF ALL CLAIMS. The terms set out in this Agreement,
provided that such terms are satisfied by the Company, are in lieu of
(and not in addition to) and in full
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satisfaction of any and all other claims or entitlements which the
Executive has or may have upon the termination of the Executive's
employment and the compliance by the Company with these terms will
cause a full and complete release of the Company and its parent and
their respective affiliates, associates, subsidiaries and related
companies from any and all claims which the Executive may have for
whatever reason or cause in connection with the Executive's employment
and the termination of it, other than those obligations specifically
set out in this Agreement. In agreeing to the terms set out in this
Agreement, the Executive specifically agrees to execute a formal
release document to that effect and will deliver upon request
appropriate resignations from all offices and positions with the
Company and its parent and their respective affiliated, associated,
subsidiary or related companies if, as and when requested by the
Company upon termination of his employment within the circumstances
contemplated by this Agreement.
21. ACKNOWLEDGEMENT
21.1. ACKNOWLEDGEMENT. The Executive acknowledges that:
(a) he has had sufficient time to review this Agreement thoroughly;
(b) he has read and understands the terms of this Agreement and the
obligations hereunder;
(c) he has been given an opportunity to obtain independent legal advice
concerning the interpretation and effect of this Agreement;
(d) he has been provided an adequate explanation of the nature and scope
of each of the terms of this Agreement; and
(e) he has received a fully executed original copy of this Agreement.
22. The parties acknowledge that they have agreed that the present
Agreement as well as all documents and notices given pursuant hereto
or relating directly or indirectly hereto may be drawn up in English.
Les parties reconnaissent avoir accepte que la presente convention
ainsi que tout document execute et xxxx xxxxx directement ou
indirectement a la suite ou relativement a la presente convention
puissent etre rediges en anglais.
IN WITNESS WHEREOF, THE PARTIES HAVE EXECUTED THIS AGREEMENT
ON May 7th, 0000 XX Xx. Xxxxxxx, Xxxxxx
------------------------------- ------------------------------------
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LUMENON INNOVATIVE LIGHTWAVE
TECHNOLOGY INC.
/s/ Pierre-Xxxxx Xxx /s/ Xxxx Xxxxxxxxx
------------------------------------------ ---------------------------------
DULY AUTHORIZED REPRESENTATIVE, AS PER THE XXXX XXXXXXXXX
RESOLUTION OF THE BOARD OF DIRECTORS
PIERRE-XXXXX XXX
/s/ Xxxxxx Xxxxxxx
------------------------------------------
WITNESS - Xxxxxx Xxxxxxx
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SCHEDULE I
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RELOCATION COSTS ESTIMATED BUDGET (CALIFORNIA TO QUEBEC)
----------------------------------------------------------------------------------------------
US$ CAN$ TOTAL
----------------------------------------------------------------------------------------------
Packing and moving(1) $ 18,000
Real estate fees (estimated 6% on $900,000) $ 54,000
Legal fees $ 10,500
Inspection fees $ 1,000
Legal fees $ 1,000
Lump-sum improvement allowance $19,000
(non-taxable)
Tax transfer $13,500
Total $ 82,500 $34,500
(converted to CAN) $128,889 $34,500 $163,389
* Those costs represent the maximum amounts payable by the Company.
All expenses are paid upon provision of invoices .
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----------------
(1) Company agrees to transport, via an appropriate transportation means,
Executive's 1998 Mercedes S320 automobile from California to Montreal, with
the request of the Executive, prior to the packing and shipping of the
household goods, inclusive of the second automobile owned by the Executive,
associated with the sale of his home in California and the purchase of a
home in Montreal.
If required, reasonable costs for storage in Canada of the Executive's
goods for a ninety (90) day period will be reimbursed to the Executive upon
provision of invoices.
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SCHEDULE II
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BOUNCE-BACK COSTS ESTIMATED BUDGET (QUEBEC TO CALIFORNIA)
--------------------------------------------------------------------------------
CAN$
Packing and moving $ 30,000
Real estate fees
(estimated 6% on $1,000,000) $ 60,000
Other expenses $ 16,000
Total $ 106,000
* Those costs represent the maximum amounts payable by the Company. All
expenses are paid upon provision of invoices.
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